Reading Between The Still Secret Lines Of The ACTA Negotiations

from the the-politics-of-politics dept

There's been a lot of back and forth talk about ACTA and all the secrecy behind the negotiations on it. But what's really happening behind the scenes? Some experts are pointing out that it's a very profound shift in US policy -- but done in a way that most people wouldn't notice unless they've spent a lot of time understanding how DC politics works. Basically, the entertainment industry is driving through massive changes behind the scenes, and doing so in a way that lets them (falsely) say to the public "this really doesn't change anything."

Yesterday I attended a fascinating panel discussion about ACTA, hosted by Google at its Washington DC offices, as a lead-in to today's World Fair Use Day event. The four participants each brought a different perspective to the panel, though only one, Steve Metalitz, a lawyer who represents a coalition of entertainment industry interests, was there to defend ACTA. Jamie Love of KEI was his main sparring partner, though Jonathan Band (a lawyer representing various tech and library organizations) made plenty of insightful points as well. The final participant was a legislative staffer from Rep. Zoe Lofgren's office, Ryan Clough, who tiptoed the line of expressing some concern about ACTA, without fully coming out against it.

The National Journal's Tech Daily Dose has a short summary of the event, but there were a lot more interesting things going on in the discussions -- which got pretty heated at times. Metalitz began with the usual talking points from the entertainment industry on ACTA: (1) "copyright industries" represent a huge part of the economy and (2) piracy is a huge problem -- thus, ACTA is important. Love challenged Metalitz on the numbers (and Metalitz simply said he'd have to get back to Love on the specifics), and it was nice to see Clough counter Metalitz' numbers by pointing out that using the same counting methodology as the entertainment industry used to claim how "big" the copyright industry was, the size of industries that rely on exceptions to copyright law -- like fair use -- are even bigger. Love also countered Metalitz' one-sided claim of "economic harm" from infringing by pointing out that almost every "infringement" could be seen as an economic benefit in some area as well -- and discussed how research into medical cures -- that was almost certainly infringing -- was saving lives and how infringing on content for the purpose of teaching was making a smarter society.

But where the debate got really interesting, and dug in well beneath the talking points, was when Love and Band (with an occasional hand from Clough) read between the lines to explain how these things tend to work, and what's really going on, including the careful language choices by supporters of ACTA, such as Metalitz. They basically pulled back the curtains on the talking points and what happens in the backrooms during these types of negotiations. Amusingly, many on the panel had seen parts of some of the ACTA documents (briefly), but couldn't talk about them since they had signed an NDA. Band, in particular, kept noting that his comments were not based on the document he signed an NDA over, since he couldn't comment on that, but on a "leaked" copy that hit the internet. As Love and Band pointed out, the fact that they could only discuss the leaked content rather than what had actually been seen only served to highlight the ridiculousness of the process.

The key point, raised by both Love and Band, is that there are other forums for discussing international IP protections, such as TRIPS and WIPO -- both of which have become increasingly more transparent and open to holding discussions with many different parties (including consumer rights people). As an example, Love pointed out that at the most recent WIPO meetings about IP issues, folks from EFF and Public Knowledge participated along with the big copyright interests -- and he noted that as the discussion has become a more open and real conversation (rather than backroom dealing), the folks involved in WIPO and TRIPS are finally paying attention to the real impact of expansive copyright policy. Not only that, but the public has been able to speak up, and what's being said online and elsewhere by people concerned about these issues is being heard within these organizations. But, of course, the copyright folks don't like that.

On top of that, Band pointed out, within TRIPS and WIPO there are numerous developing countries who are recognizing -- correctly -- that strict IP enforcement is designed solely to benefit a small group of companies in developed nations at the expense of the people in developing nations. Thus, they're starting to push back on IP expansion. Combine all that, and you get ACTA -- an entirely new forum to take on these issues, which (conveniently) only includes developed nations and leaves out the developing nations who had become so pesky. Metalitz pulled out the "but this won't really change US law" gambit, to which Band pointed out that the real goal here was never to make huge changes to US law, but to eventually force all those developing nations to go along. Basically, you get the developed nations to agree to ACTA, written by the big copyright players, and then you start putting pressure on developing nations about how they need to conform to ACTA as well to join the club.

Even worse, the panelists explained multiple ways in which the claim that "this won't change US law" is bogus. First, if that were really true, there would be no reason to keep it secret. Love noted that the only reason to keep it secret is because the industry is "ashamed" of what's in the document, and won't come out and discuss it, knowing that the public would go nuts. Love also pointed out that in what's been leaked in ACTA, what you basically have is all the stuff from previous agreements (WIPO and TRIPS) that the copyright industry liked -- but without the consumer protections that were built into both agreements. And then, on top of that, the copyright industry put in dispute resolution concepts that greatly help it, not consumers. Effectively, it's a way to claim that nothing changes -- since it took the parts that favor the industry folks, but leaves out the protections and potentially aspects of the safe harbors.

Furthermore, Band and Love took on the fact that it's being called the Anti-Counterfeiting Trade Agreement, since almost none of that is true. It's got little to do with counterfeiting and little to do with trade. In fact, one of the "talking points" from the entertainment industry is that this is just an "executive agreement" rather than a "trade agreement" (which would require congressional approval). But why shove copyright into what's officially a "counterfeiting" agreement? Because "counterfeiting" is one of those words that no one wants to be in favor of. No politicians will speak out against a treaty supposedly designed to stop "counterfeiting" since people intuitively believe that counterfeiting is bad. As Love explained, it's like calling something "The Patriot Act." No politician wants to vote against something like that, no matter what the details are. He notes, tragically, that the only politicians who have spoken out against ACTA have spoken out about the transparency issue -- but not about the substance of what's being negotiated.

Furthermore, Band pointed out another neat trick used by the entertainment industry with ACTA. Because they can pretend it's not really an intellectual property agreement, but a "trade agreement," they can compare it to other trade agreements that were also negotiated in secrecy. But, as Band notes, this isn't really a trade agreement. There may be good reasons for certain aspects of trade agreements to be negotiated in secrecy, as it actually could involve national secrets. But a multilateral negotiation on IP policy is not a trade negotiation and involves no state secrets. The only other reason to call it that is to pretend that the level of "secrecy" is normal, despite it being a totally different type of negotiation.

Again, discussing the idea that ACTA wouldn't "change" laws very much, a lawyer in the audience pointed out how incorrect that statement was, and noted how none of the countries negotiating had clear laws on secondary copyright liability to the level required by the leaked ACTA documents -- and that even in the US secondary liability was far from settled law (and, in fact, aspects of it were disputed in various courts). But by mandating such secondary liability (things like an "inducement" standard for copyright infringement), it would mandate that countries go much further than they have already, sometimes in massive ways.

Metalitz, once again, didn't seem to think this is a problem -- misstating the meaning of the Grokster rulings (and the IsoHunt ruling) way beyond what the court intended -- and suggesting that other countries had a moral imperative to put in place similar laws. Not surprisingly, he singled out Canada -- despite Canada's strong copyright laws -- insisting that ACTA "might finally drag them into the 21st century." By putting in place more draconian 19th century monopoly rules designed to prop up one industry? No thanks.

All in all, it was an entertaining and enlightening talk. Mostly it was professional, though Metalitz regularly resorted to bizarre personal attacks and sarcastic digs at everyone else. He insisted that those who were complaining about secrecy "just don't want any agreement at all." He mocked Love for claiming that earlier treaties were more open by saying that the anti-circumvention clauses came out of "one of those super open treaties that Jamie likes so much," and most obnoxiously of all, when Love asked why the industry and the US government couldn't be more open on these things, Metalitz shot back that the US could absolutely be more open, "if it felt Jamie's concerns were more important than progressing on an agreement." This suggests that no agreement could be reached if the US government were honest about it. That statement alone should be pretty telling. There was also a really telling Freudian slip at one point by Metalitz, though he didn't realize it, and I don't think most people noticed. In trying to explain why ACTA negotiations made sense, he insisted that because ACTA would benefit some industries deeply, it made sense for countries to meet about it. Notice that he switched from talking about industry at the beginning of the sentence to countries at the end. To him, it's all the same. ACTA is really protectionism for a particular industry. The negotiations are effectively collusion, but perpetrated by gov't officials acting as proxies for industry.

I definitely learned a lot at the session, but came out of it more afraid of ACTA than when I went in. But I certainly have a much better understanding of how ridiculous and misleading the entertainment industry's talking points are on this discussion -- and hopefully you do too.

You know considering all the talking points about how the ACTA wouldn't change the law that much. How about we just abondon it and not change the law at all. After all if there isn't much change, there won't be much benefit, and we can all save a lot of time and money by treating it as a sunk cost and walking away.

Or maybe the industry shills are just lying about it. Lets check to see if their lips are moving.

I'm going to start a new treaty

I'm going to call it the "Saving the lives and livelihoods of everyone in the world" treaty. It will be an agreement among nations to pay everyone who currently reads Techdirt millions of dollars a day to continue doing so.

If a country doesn't want to sign I'll say that they want to destroy the lives of millions of people. It's foolproof!

From the moderator: thanks for the writeup

This was a fun panel discussion to run, and I'm glad you found it "entertaining and enlightening." I still can't believe we didn't even get into the "graduated response" issue in an hour and a half of chatter, though. (Does that suggest what a hairball ACTA is becoming?)

BTW, to address the sentiment of the first two comments: A lot of these discussions do seem to assume that the right legal and technological framework will let copyright owners regain control of their work's distribution, but I don't think that's quite possible. So in my closing statement, I noted how I only had to paste a few strings of text into the command line to enable DVD playback in Ubuntu, DMCA or not.

Re: From the moderator: thanks for the writeup

This was a fun panel discussion to run, and I'm glad you found it "entertaining and enlightening." I still can't believe we didn't even get into the "graduated response" issue in an hour and a half of chatter, though. (Does that suggest what a hairball ACTA is becoming?)

And apologies to Rob for not even mentioning him in the writeup! Though, it's the sign of a great panel that the moderator isn't necessarily a part of the discussion, but simply did a great job keeping the conversation guided and moving -- as you did.

Re: Re:

Even if it is a futile effort, some people will get caught in the cross-hairs. Maybe not to you, maybe not to me, but harm will be done.

And, if they actually succeed in increasing secondary liability, there's very real and obvious harm that will be done to the progress of software development. "Hey bob, you sure you want to write that, it might be used for infringement." That's really the scariest part to me.

How will they stop sneaker-nets and private networks? I dont believe the old-foggeys running the "copyright industry" understand that there is no end-game, that it will go on for as long as people have fingers and brains to use them.

A couple of questions on this oddness:

Since this is an "executive agreement," then I assume this just means Obama and his minions are the only parties to it and will honor it. The rest of us can and should continue to ignore it, since we aren't executives and never agreed to anything.

A couple of questions on this oddness:

1. Mike -- what did you do, just sit there and take notes? Where is the fire and passion brother? It sounds like there was some audience participation, so where is the taking of some of our comments here straight to the horse's mouth and seeing if you get a response? You were OUR representative there, as far as I'm concerned. Please tell me you're just modestly omiting your contribution....

2. "Love challenged Metalitz on the numbers (and Metalitz simply said he'd have to get back to Love on the specifics)" -- Sigh, why doesn't anybody ever come to these damn things PREPARED!!?? And I mean either side. Metalitz's claim that he doesn't know his numbers makes his statement useless, but Love's challenge is equally useless for the same reason. Both of them had to know this talking point BS was going to come up, so why didn't Love have the numbers printed out, make a little paper airplane out of them, and then zip them over after Metalitz's claim while chanting "Moron, moron, you so dumb, and here is why, you industry bum"?

3. "there are other forums for discussing international IP protections, such as TRIPS and WIPO -- both of which have become increasingly more transparent and open to holding discussions with many different parties" -- isn't it likely that this is because no more secrecy in those forums is required, now that they've figured out how to do them ACTA style?

4. "Even worse, the panelists explained multiple ways in which the claim that "this won't change US law" is bogus. First, if that were really true, there would be no reason to keep it secret." -- No, if that were really true then there would be no reason for the United States to sign the agreement AT ALL. All trade agreements when ratified change US law, if only minimally by creating rules we're going to adhere to per the agreement. That isn't international law, it's US law, on our books. The level of sophistry in their arguments latey is getting very strange....

Re: A couple of questions on this oddness:

Mike -- what did you do, just sit there and take notes? Where is the fire and passion brother? It sounds like there was some audience participation, so where is the taking of some of our comments here straight to the horse's mouth and seeing if you get a response? You were OUR representative there, as far as I'm concerned. Please tell me you're just modestly omiting your contribution....

There were plenty of people asking questions making these points -- and Metalitz was asked tough questions and ignored/brushed them off. I didn't think that I would necessarily have added much in terms of questions beyond what people were saying. Metalitz wasn't interested in actually discussing these issues.

2. "Love challenged Metalitz on the numbers (and Metalitz simply said he'd have to get back to Love on the specifics)" -- Sigh, why doesn't anybody ever come to these damn things PREPARED!!?? And I mean either side. Metalitz's claim that he doesn't know his numbers makes his statement useless, but Love's challenge is equally useless for the same reason. Both of them had to know this talking point BS was going to come up, so why didn't Love have the numbers printed out, make a little paper airplane out of them, and then zip them over after Metalitz's claim while chanting "Moron, moron, you so dumb, and here is why, you industry bum"?

That's a good point, though I'd argue that it wasn't necessarily that everyone knew those numbers would come up (the one in ten jobs thing was new...). Also, in the format of a panel, it's tough to dig into the numbers when the goal is to have the conversation move forward. The whole thing with Metalitz saying to Love he would get back to him was a way for Metalitz to brush off Love since he couldn't back it up -- and that point was clear to everyone in the audience. The purpose of Love's question was accomplished.

3. "there are other forums for discussing international IP protections, such as TRIPS and WIPO -- both of which have become increasingly more transparent and open to holding discussions with many different parties" -- isn't it likely that this is because no more secrecy in those forums is required, now that they've figured out how to do them ACTA style?

Nah, it happened in the other direction. And the industry is still not thrilled about the openness in WIPO and TRIPS.

4. "Even worse, the panelists explained multiple ways in which the claim that "this won't change US law" is bogus. First, if that were really true, there would be no reason to keep it secret." -- No, if that were really true then there would be no reason for the United States to sign the agreement AT ALL. All trade agreements when ratified change US law, if only minimally by creating rules we're going to adhere to per the agreement. That isn't international law, it's US law, on our books. The level of sophistry in their arguments latey is getting very strange....

Well, the argument that they are making is that it doesn't change US law, but brings others into harmonization with US law, while also making clear what the enforcement side is going to be. Bogus, yes, but that's the explanation.

Names of Laws

> But why shove copyright into what's officially
> a "counterfeiting" agreement? Because
> "counterfeiting" is one of those words that no
> one wants to be in favor of. No politicians will
> speak out against a treaty supposedly designed to
> stop "counterfeiting" since people intuitively
> believe that counterfeiting is bad. As Love explained,
> it's like calling something "The Patriot Act." No
> politician wants to vote against something like
> that, no matter what the details are.

It's because of this very thing that I believe that all naming of bills and proposed laws should itself be outlawed. Only the bill's House or Senate number is necessary to identify it. Nothing else. Just H.R. 1278 or S.B. 5429 or whatever the number happens to be. That way we won't have people voting for things just because they're afraid to say no to something with the word "patriot" in the title.

This phenomenon comes into play most frequently with anything dealing with children. Just throw the word "child" into the title and combine it with "safety" or "protection" and you're all but guaranteed that no one will vote against it, no matter how extreme or draconian the actual details of the bill happen to be. No politician wants to be running for re-election and have his/her opponent running TV ads saying "Senator Smith voted against the Children and Puppies Protection and Safety Act".

Only the bored elite have time to sit around and discuss how the rest of the world should behave.

They can change the policy, but not the policing. Developing nations arent going to magically have the money or structure to worry about the internet. But, Im sure they will sign up in hopes that one day it will come with resources for them to embezzle into something more profitable.
(or they will be paid up front and hopefully encourage their friends)

Think folks in coastal Africa are going to jump right on that illegal downloader problem?

We they get out of the meeting we should throw them a surprise "go f yourselves" party.

Re: Re:

Not a worry for criminals

Everyone who keeps saying "we will keep pirating stuff anyway" is missing the point. This is not about piracy. It is about getting laws in place to give the copyright industries more money without them having to invest more effort by taking rights away from other industries and from individual citizens. The damage isn't going to be related to "piracy" at all (what do those already breaking the law care about it becoming more strict?), it will be to companies, groups and individuals who are actually still trying to abide by the law.

Re: Not a worry for criminals

Indeed. But maybe the new paradigm is that people stop abiding any supposed "laws" made by a gaggle of self-important, illegitimate pricks who have long ago overstepped whatever bit of authority they morally or lawfully possessed.

Re: Not a worry for criminals

If they push this through then everyone needs to stop buying what they are selling and if that means everyone downloads.. Then so be it..

I've already put Warner Brothers on my extensive "Will never buy another movie again" list for them making a deal with Netflix to postpone their DVDs by a month.. OK, you're plan to force folks to buy the DVD just failed by one consumer and now, because of that, you get no money from purchases from me forever. I may have to find another way to view what I want but I'm not going to pay twice to view a movie on BluRay.

The more they tighten their grips, the more I'll turn to other methods and the more I'll boycott them..

If at the end of the day, I can't buy any DVDs then I'll stick to my Netflix and watch them a month late..

But I don't pay premium cash anymore for their stuff.. It's cheap legal streaming or rentals that get returned..

You want me to buy your stuff? Make better stuff!

You keep up this line of thought in regards to consumers and I'll stop buying completely.. That doesn't mean I won't still watch movies, it just means that you will have forced me to free services after exhausting normal, legal methods.

The 4th amendment of the US constitution

In the US there is this wonderful thing called the 4th amendment,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

with that said here are a few excerpts from the wiki article describing

The leaked document includes a provision to force Internet Service Providers (ISPs) to provide information about suspected copyright infringers without a warrant, something which many feel should not be legal, making it easier for the record industry to sue music file sharers and for officials to shut down non-commercial BitTorrent websites such as The Pirate Bay.

Details published in February 2009 indicate that ACTA has six main chapters. Most of discussion to date is focused on the "Enforcement of Intellectual Property Rights" chapter, which has four sub chapters:[3]

Re:

that is not a 'really interesting article'. that is a terrible article.

The first page is rather interesting, but the second page, (the one you actually linked to) opens with logical fallacy before moving on to a discussion about 'frozen culture' from the perspective of someone who is completely ignorant about contemporary culture. It's called "postmodernism" and its been going on since the 1970's!

“It’s as if culture froze just before it became digitally open, and all we can do now is mine the past like salvagers picking over a garbage dump,” Mr. Lanier writes

But the thing is, mash up artists (like girl talk) will often take a melody or riff from one very old song, and contrast it with a riff from another song, to illustrate that artists have been sampling and copying each other for ages, he just makes it more obvious.
Artists in the past tried to hide it; mash up artists rub your face in it. That is not frozen culture, that is saying something very different than artists of the past were saying.

Re:

"He insisted that those who were complaining about secrecy "just don't want any agreement at all.""

and if it's true that the public (whom you are censoring this from) doesn't want such an agreement then why should there be an agreement? The government is supposed to serve the will of the public, not just YOUR will. and why should the public want an agreement that unfairly benefits YOU at public expense. I take this as a tacit admission that ACTA is not here to serve the will of the public, it's here to unfairly serve YOUR will at public expense. After all, if the public wants such an agreement then why the secrecy.

That's the problem with you rich thugs. You are completely uncompromising, you don't even want the public to know about the iniquities you perform. If you don't get your way 100 percent you claim that those who aren't giving you your way 100 percent are non compromising. It is YOU that are non compromising and why should the public even attempt to compromise with terrorist thugs.

and as evidence look at all the laws in place (ie: the length and dynamics of intellectual property laws, the government granted monopolies on cableco/telco infrastructure and who can build new infrastructure, the govt granted monopolies on taxi cab drivers, and the list goes on). These laws aren't a compromise, they are you bribing the government to exploit the public.

I just don't know how you can live with yourselfs knowing that you, a very tiny faction of the population, are the sole cause of a disproportionally HUGE portion of the worlds suffering and that the world would be a MUCH better place without you.